Tuesday, October 28, 2014

How the Judge decides child custody.

Have you ever wondered what factors Florida family court judges weigh in determining how to decide child custody cases? It isn't which parent the judge likes the best. And it isn't always the mother. Years ago, Florida had what is called a "tender years doctrine" which said that the courts should give preference to the mother in child custody cases, when the children were young. That doctrine has not been used for many years, now the courts must rule in the best interests of the child or children in all family law matters. Following is the a through t list in the Florida Statutes.


61.13 Support of children; parenting and time-sharing; powers of court.—

(3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.




Tuesday, October 14, 2014

Support Unconnected with Divorce

John and Daisy were proud of their independence. They married young and enjoyed the joy and privilege of watching both of their children grow up, marry and have children of their own. Their oldest granddaughter was engaged to be married, and John and Daisy looked forward to meeting their great grandchildren whenever they arrive. The couple lived modestly and well within their means. As children of the depression, they both knew how to be frugal. But, they also treated themselves to a vacation once a year and dinner out at least once a month. They enjoyed good health, and stayed active by walking at least one mile daily. Daisy was also careful about their diet, making sure that they always ate wholesome and healthy foods.

Life can change on a dime.

They were walking, as they always did, around the long block. John stumbled and fell. When he fell he hit his head on the sidewalk. Daisy did not panic. Instead, she knelt beside him and talked to him; somehow knowing that she had to keep him awake.. He was semi-coherent. She told him he would be fine, and quickly called 911 on her cell phone. A fire truck and ambulance arrived within minutes; loaded John on a gurney and took him to the hospital. Daisy rushed home and followed. After waiting and wondering for hours, Daisy learned that John would probably be fine. The bump on his head was minor, and there was no concussion. But he had suffered a stroke which had caused the fall to begin with. The doctor wanted to keep John at the hospital, at least overnight maybe longer. Over the next few days, John got better, mostly better. He could talk but didn't have the full use of one arm and one leg. He needed help to get around. The doctor told her it was encouraging that he was talking again so soon. Daisy and John's children came to visit, they both offered to stay in town until John was better. Daisy declined, told them that John is getting better and he'll be home soon.

The days turned into weeks. And although John was better -- his recovery was not complete. He still couldn't walk by himself, and his left arm didn't work at all. The doctor advised that John should go to a nursing home. Daisy knew all too well that most people that go to a nursing home never come out. She talked it over with both of her children. They both told her that she needs to rely on the doctor, and they both said they would come and stay with her and help in any way possible. John's recovery was slow, and the doctors released him to a nursing home as planned. Daisy went everyday to visit him. She sat with him and watched TV, told him news and gossip about family and friends, and tried to make him smile.

The first month that John's social security income was redirected to the nursing home, Daisy barely noticed being preoccupied with John's recovery and return home. The second month, she paid everything again herself from her check and their savings. John's social security was two thirds of their family income. And now his income was gone. She struggled to pay all the bills on her own. She asked her son and daughter for financial assistance, and they happily obliged. But, Daisy knew neither could afford to make up for her financial shortfall for very long. They had their own families and children to look after.

Visiting hours at the nursing home began at 10:00 in the morning. Daisy tried to maintain her usual daily routine, although it was hard without John by her side. She still walked the long walk around the block. Kept up her one mile a day. One fine morning as she was walking, she just couldn't go further by herself. Her thoughts wouldn't stop. She kept wondering how she was supposed to manage on her own. She knew in her heart that John would get better, and she knew it was up to her to make sure that he had a home to come back to. She stopped that day at the playground where the young mothers sit and watch their children play. She watched the little ones on the swings as she sat on the bench, thinking hard about what to do. Thinking too hard, most likely. Out of nowhere a bouncy ball landed in her lap. Startled she looked up and saw a happy toddler chasing after it, and an apologetic mom chasing the toddler.

Mom tossed the ball to her daughter, and sent her back out to play. The women started talking as women do, about their children and then about their lives and then about their husbands. It turned out the young mother was suddenly single, her husband having left for reasons unknown. The young mother was determined that he wouldn't get away with it, he was not just going to walk away from the family. She hoped he would come to his senses and come back. The young mother confided to Daisy that she had filed a Petition for Support Unconnected with Divorce. The young mother said she didn't know if she wanted a divorce or not, but she was quite sure she needed to feed the children. It occurred to Daisy that maybe she could file that too.

Daisy went to the law library to try to find the answer. The law clerks were helpful, but she still wasn't sure. Then she went on the internet and found out a little more. It wasn't clear whether this process would work in her own situation. Daisy then discovered that her local legal aid society had a walk -in legal clinic once a month, where attorneys would answer legal questions free of charge. She went. And here is what she learned:



Help for the Stay-at-Home Spouse when their partner has to move into a nursing home:

When one of the spouses can no longer live at home and must be moved to an assisted living facility, memory care facility, or nursing home, they usually become Medicaid patients which means that the government will pay all of their living and medical expenses at the facility, but will take their monthly income as reimbursement. Many times, this can leave the spouse remaining at home destitute.

Florida allows a person to file a Petition for Support Unconnected with Dissolution of Marriage (with no Dependent or Minor Children), Form 12.904(b). This allows the couple to remain married, but can be used as a method to ensure support.

This form may be used if a dissolution of marriage action has not been filed, and the spouse filing the Petition is requesting alimony, more recently referred to as “spousal support”. This Petition, Form 12.904(b), does not address the issues of property or debts. It only deals with support.

The stay-at-home spouse can file this Petition, along with the other documents required by the State of Florida to be filed at the same time, and the final result of this action would be for the Court to enter an Order directing that the income of the spouse moving to a facility (presumably Social Security and any type of retirement income) would first be paid to the spouse that is left behind, still living in the home that they shared. Any additional amounts of monthly retirement income that are not “awarded” to be paid to the stay-at-home spouse would be taken by the government, but at least the stay-at-home spouse will be taken care of.

Daisy was elated at the discovery. She filed it through the courts and was awarded support. Some of John's check still went to the nursing home, but Daisy was awarded enough to carry on. She knew that John was coming home, and without this support, he would not have a home to come home to.

Co-authored by Gayle Coffman and Ruth Tick


Thursday, October 9, 2014

Repost - Fight for the Future! Net Neutrality Affects Us All.

If you use the internet, read/send emails, have a website, use social media, read online articles, research, look at pictures online - if you do any of that - this affects you. If the net stopped being neutral most of the small businesses based on a website would be starved out.

Hey,

I just wanted to make sure you saw this email? There's good news! Thanks in part to the response we helped generate, the FCC has extended the deadline to receive comments about Comcast's attempted internet takeover until October 29th.

50,000 people have taken action already. The FCC will be surprised by this kind of response to a merger question, but the deck is stacked against us so we need to go all out. Can we count on you to help us get to 100,000 comments by the end of this week?
Click here to submit a comment to the FCC opposing the Comcast merger that would dismantle Internet freedom.

Read the email below for more background, and please forward this to your friends and family. It affects all of us!

Sincerely,
-Tiffiniy from FFTF

Dear Fight for the Future member,


This one really requires no explanation. The most hated company in the US is trying to take over the second most hated company in the US, in a move that would raise our cable and Internet bills, stifle online free speech, and make them one of the most powerful lobbies in history. [1]

This merger is bad for EVERYONE, and there is tons of opposition, even from within the FCC. We have a real chance at stopping this but we have to act quickly. [2]


Comcast is already the largest and most powerful opponent of net neutrality, online privacy, and Internet freedom. They’ve been caught several times abusing their “gatekeeper” power as an Internet provider to further their own interests. [3] If the FCC lets Comcast forcibly absorb Time Warner Cable -- the second largest Internet provider in the U.S. -- they will control access to information in nearly 6 of 10 people’s homes (more if you're only counting truly high speed Internet). [4]

Millions of you have sent comments to the FCC in support of net neutrality. We’re asking for your help again because if this merger goes through, Comcast gets even more powerful -- in the marketplace, online, and in Washington, DC. If we don’t stop this takeover right now, we'll be fighting an uphill battle on net neutrality and online free speech for years to come.

Will you sign? Click here to submit a comment opposing the Comcast merger.After you sign, please forward this email to everyone you know and share the petition on social media.

Here’s the link one last time: 
http://www.battleforthenet.com/comcast?org=fff 

Thanks for all that you do,
-Tiffiniy Cheng
Fight for the Future

SOURCES:
  1. Brad Reed. "Massive survey finds Comcast and TWC are the two most hated companies in America – period". BGR.http://bgr.com/2014/05/20/comcast-twc-customer-satisfaction-survey-study/
  2. Brendan Sasso. “FCC Chief: Cable Companies Are Wrong About Internet Competition”. National Journal.http://www.nationaljournal.com/tech/fcc-chief-comcast-is-wrong-about-internet-competition-20140904
  3. Cecilia Kang. “Comcast, Time Warner Cable merger faces a grilling in Washington this week”. Washington Post.http://www.washingtonpost.com/blogs/the-switch/wp/2014/04/08/comcast-time-warner-cable-merger-faces-a-grilling-in-washington-this-week/
  4. S. Derek Turner and Matt Wood. “Petition to deny free press”. Free Press.http://www.freepress.net/sites/default/files/resources/Free%20Press_14-57_Petition%20to%20Deny_Final.pdf




Who Is a Bankruptcy Petition Preparer?

There is information all over the world wide web about how to prepare your own bankruptcy documents. Its possible, the forms are free downloads from the various Federal Bankruptcy websites. But there are many forms, and many people just do not want to prepare them themselves. And, most people only file for bankruptcy once in their life and the time it takes to learn about all the forms and procedures for that one time filing may seem unreasonable and overwhelming.

Nonlawyer Bankruptcy Petition Preparers are a recognized part of the system. [11 USC § 10]


"Who is a Bankruptcy Petition Preparer?
A "bankruptcy petition preparer" is a person who, for compensation, prepares any document for filing by a debtor in connection with a case in the bankruptcy or district court. A bankruptcy petition preparer is any person or business, other than a lawyer or someone who works for a lawyer, that charges a fee to prepare bankruptcy documents. Under your direction and control, the bankruptcy petition preparer generates bankruptcy forms for you to file either by typing them or inputting information into a bankruptcy software program.
Because bankruptcy petition preparers are not attorneys, they cannot provide legal advice or represent you in bankruptcy court. This means that the bankruptcy petition preparer cannot:

  • tell you which type of bankruptcy to file
  • tell you not to list certain debts
  • tell you not to list certain assets, or
  • tell you what property to exempt.
In essence, you must understand what debts your bankruptcy will discharge, what will happen to your property in the bankruptcy, and what laws should be used to exempt your property from being taken for the benefit of your creditors.



In addition, you must file the bankruptcy papers yourself and represent yourself in court. In other words, you are responsible for your case. You act as your own attorney and use the bankruptcy petition preparer as a typing service that transposes the information you give them onto the official forms."

FAIR ENOUGH.
HOWEVER:

I recently heard from a document preparer, who actually isn't even preparing bankruptcy documents at all -- he sells a bankruptcy kit - an organizer. Consumers purchase his kit, and return the filled in information so that a Bankruptcy Petition Preparer can then input that information into a software program which generates the completed documents. The completed documents are then returned it to the customer for filing. All of the monies spent by the consumer are disclosed as required under the federal bankruptcy rules.

A Federal Bankruptcy Trustee is in the process of running this document preparer out of business. The Trustee went so far as to tell the document preparer that he is on a mission to derail all bankruptcy petition preparers in the country. Despite the simple fact that Bankruptcy Petition Preparers are a recognized part of the system. Despite the fact that written materials explaining how to prepare documents are protected as free speech under the First Amendment. And despite the fact that many consumers cannot afford attorney fees, and would go without altogether, but for the assistance of a document preparer.

THIS HURTS CONSUMERS.

Bankruptcy Petition Preparers charge around $200. to complete required forms for a Chapter 7 Personal Bankruptcy. Attorneys charge around $2000. Attorneys can advise bankruptcy filers as to which bankruptcy chapter to file under; whether to file bankruptcy; and advise filers as to which assets are exempt -- Bankruptcy Petition Preparers cannot.

The choice between using a bankruptcy attorney or a Bankruptcy Petition Preparer is not apples to apples. The choice is more like - between hamburger and filet mignon. The budget sometimes dictates our choices. And, obviously, consumers filing bankruptcy may simply not be able to afford attorney pricing. If you can't afford the filet, having a hamburger isn't so bad.


If that Trustee has his way, anyone that can't afford the filet goes hungry.

Monday, October 6, 2014

FALDP Announces New Ambassador Program

One outcome of The Florida Association of Legal Document Preparers's recent conference is the launch of a new community outreach program. FALDP - Empowering the People.

The FALDP Ambassador Program is a local community outreach program in which FALDP members reach out to consumers and educate the public about our association. By reaching out into communities we hope to raise awareness about our industry in general and make our individual document preparation services available; along with the other services our members offer.


We, the members of the Florida Association of Legal Document Preparers, deeply believe that it is the right of all American consumers to have access to the legal system, regardless of income or education. It is our mission to deliver well researched legal information to consumers.

The FALDP mission embodies our quest and our goals. We offer legal information; and document preparation assistance. We hope that by educating consumers about their legal rights -- we will have done our part to give others hope.

The FALDP mission is a journey. We have only begun, there is much to do. We hope that the confidence gained through education and knowledge will empower consumers, so they may have a fighting chance to enforce or pursue their rights in a court of law.

***

If you are involved in a group or community program whose members are in need of legal information or document preparation assistance we may be able to help. As nonlawyers we are prohibited from offering legal advice or representation. Individual FALDP Ambassadors use and expand their personal and business contacts to extend our association's reach while promoting their document preparation services.

The groups that the FALDP Ambassadors are set to contact include: women's groups, men's groups, Chambers of Commerce, Legal Aid Societies, divorce groups, singles groups, clerks of court, correctional facilities, business networking groups, domestic abuse centers, and many more.


If you are a document preparer who is interested in joining our association and becoming an FALDP Ambassador, we are always accepting membership applications. We are hosting a members only webinar this coming Saturday 10/11/2014. Annual membership is only $75. Membership benefits far outweigh the price. Come grow with us!


Thursday, September 18, 2014

Domestic Violence is Real

Following is a true story. My ex-husband's name was changed to keep the guilty from bothering me. Blaming the victim is alive and well -- and few people understand the true dynamics of domestic violence. Many believe claims of domestic violence are overblown, exaggerated, and -- the victim's fault -- or she must like it. Since domestic violence is being discussed in the national media, I thought I would share my story. The following article was written about four years ago, about an incident several years before that. Please know, how much blaming the victim hurts.



Small Dogs, Small Men, and Mini-Blinds


I don’t apologize for my grudges. Brutus, Mima’s nasty little rat terrier, a dog I had known for seven years, totally unprovoked, tore across the living room and bit me in the leg. Bobby, a small man and my husband at the time, for no good reason, swung a rolled up set of mini-blinds, swung like a baseball bat, connecting with my back and nearly killed me. Still today I am wary of small dogs, small men, and mini-blinds.

Back then, my family, my friends, and more than one cop, asked me, “Why don’t you just leave?” They all meant, and sometimes said, why don’t you just leave Bobby? -- he hits you and you keep letting him come back, and what is the matter with you that you allow it? Back then, I never had an answer. It wasn’t love that kept me there.

We were in my kitchen the day he almost killed me. Bobby and I weren’t exactly married and we weren’t yet divorced. He had filed divorce papers months before, but then refused to finish the process. Our marriage was in limbo. He was back in my life, insisting that he help work on the house. The house was a government foreclosure, abandoned for over two years, a haven for neighborhood kids skipping school, and in need of general repair. We found it together, but bought it with my name, credit and down payment. During fights and renovations, the house was in constant chaos and disarray -- piles of block, stacks of sheet rock, tools, tear-out, and mess.

That day in my kitchen, Bobby told me to go out to the trailer in front of the house and tell the guy, our supposed laborer, staying there to get out. I told Bobby no. I hadn’t let the guy move in there to begin with, I didn’t think I should have to tell him to get out. Bobby was holding the mini-blinds when I told him no. He was on his way to hang them somewhere in the house. I did not tell him no rudely, or add any other comment. Just no. I don’t remember the blow hurting, at least not right away. I didn’t fall down.

Instantly enraged, I yelled. I yelled at Bobby for hitting me, and what did he do that for, and why doesn’t he go throw the guy out himself if it’s that important. I imagine, but I don’t remember, I was rude then, all the angry words I was yelling. I sat down in an office chair with wheels that was in the kitchen for some unknown reason, and pushed myself backwards across the kitchen floor toward the back door, still facing Bobby and still yelling at him for hitting me like that. I lit a cigarette to try and calm myself, but I couldn’t smoke it. I couldn’t inhale, then I couldn’t yell anymore, and then I couldn’t talk. I could only whisper.

Ten minutes after the mini-blind blow in the back, sharp pain shot through the left side of my chest to my shoulder. My left arm went numb except for the tightening steel band above my bicep. I could barely breathe, and I couldn’t talk. I whispered, “Take me to the hospital or call me a f*** ambulance, now.”

I could still walk so we took Bobby's truck. He sped through back roads, running stop signs; now playing the hero rushing me to the hospital. He talked non-stop: I’m sorry, I don’t want to go to prison, please don’t make me go to prison, I’m so sorry, I didn’t mean to hit you, I love you, we’ll say you slipped and fell, I only just tapped you, we’ll say you fell down, I don’t want to go to prison, please don’t make me go to prison. I listened and tried to continue breathing. I thought I was having a heart attack.

At the emergency entrance Bobby jammed the truck in park, jumped out and scrambled for a wheel chair. He wheeled me through the double doors. I whispered to the orderly that I couldn’t breathe. The hospital workers moved faster than I had ever seen. I had been at that emergency room only the week before, but the week before I waited two hours for a doctor. The week before I had been laying on the couch and Bobby had hit me with a wooden stool. That day he was angry because I wouldn’t tell him where I had been. In fact, I had taken my eight year old son to the video arcade. I hadn’t answered Bobby's question only because he was demanding to know, not asking. So he had hit me with the stool, bursting the thin skin on my shin, rather than slicing it, while I lay supine on the couch. I still had the stitches from the week before.

But this day, a week later, the hospital workers quickly hooked me to tubes, and put me in a bed behind a curtain. Bobby stuck by my bedside, still talking to me about how much he loved me and how he was going to make sure I got well. He didn’t talk anymore about how he didn’t want to go to prison or that he was sorry he hit me, someone might have heard. He was the attentive husband now. When hospital workers came in, Bobby talked to them about football, and whether I was going to be alright. When the doctor came in and asked me what happened, I whispered, “I fell down.” Over the next hours I dozed and woke up, over and over to stare at the big round school clock on the hospital wall, the hands never seeming to move. Once I whispered to Bobby, “Get somebody in here to convince me I’m not dying.” The nurse Bobby fetched said they were waiting for a bed in the Intensive Care Unit. She promised I wasn’t dying, and promised to take care of me.

Later on a nurse wheeled me in my bed to the Radiology Unit where three nurses and a doctor picked me up by the corners of the blanket underneath me and set me down on the scanning table. Before closing me inside the MRI tube, the doctor instructed me to remain perfectly still. I had no will to ask questions, think, or protest. Enclosed in the tube, like a modern day mummy I was sent through the scanner, the giant magnet encircling my body, radio waves aligning my hydrogen molecules so that the doctor could see my pain.

Next, now in ICU, the doctor told me my spleen had ruptured, and my pain was from internal bleeding. The doctor told me a ruptured spleen is serious, life threatening, and he might have to take it out. But, the doctor continued, the holes in my spleen might heal themselves. The doctor watched over me all night that first night. On the third day in ICU, he told me my spleen had healed itself.

During those three days I slept a lot. I was hooked to an IV and oxygen. A nurse came in every few hours and gave me a morphine injection. The medicine burned going in my hand and sent me off to sleep. When I was alone and awake I made plans. I forced myself to call to memory a friend’s phone number, and repeated it silently until I could never forget it. I could have a nurse call my friend and tell her I was here and then she could call my mom. I bargained with myself that if the doctor wanted to operate, I would call Mom, in case I died on the operating table, someone would know what happened. Mom was out of town, on vacation in North Carolina with my son. I made myself remember the name of her hotel. I didn’t want to call my friend or my mom. I didn’t want to spoil her trip. I didn’t want to hear the words, why don’t you just leave. I didn’t want to hear their anger at Bobby and then at me. Not now, I had to get better first.

I had visitors during those three days. Bobby came, talking about how much he loved me. Bobby's boss came, a twice disbarred attorney now owner of a telemarketing room. The guy, the laborer, who I was supposed to throw out of the trailer came, I don‘t know why. A social worker came. I considered telling the social worker the truth, but didn’t. It would have been fine with me if they had put Bobby in prison then and there and kept him forever, but I couldn’t convince myself it would be that simple.

I had tried to get rid of Bobby over and over. I had told him to leave, go away and never come back, but he always came back anyway. I had left him repeatedly and found I had nowhere to hide. I had sworn out protection orders and no contact orders, only to see him immediately violate the court’s order. He would call me or appear at my house, and nobody cared. When he hit me, I called the police and Bobby would leave before they responded and come back again after they left.

After the cops had come and gone he would return to my house usually in the middle of the night, angry and drunk. He drank vodka and grapefruit juice, from noon to midnight, everyday. He never slurred his words, he never stumbled, growing more agitated as the day wore on. Any words I spoke could be the wrong thing, and set him off. By late at night he was manic, talking incessantly. His words clearly uttered, made no sense.

Within minutes his words could range from oaths of undying love to death threats. He called me every vulgar name and accused me of sleeping around. He would say he wanted to spend the rest of his life with me and that he loved me forever. He would put one hand on the back of my neck and one on my chin; and tell me he could snap my neck. Just like that.

I tried to ignore his words and stay away from his fists. It didn’t work. If I went to a bedroom and locked the door, I could hear him breaking things; or he would finally break through the door. Constantly talking, threatening, accusing, then saying he just wanted to talk, make nice.

People, my family, my mom, the cops, and the few friends I had left, thought I let Bobby come back every time. I didn’t. He just came back and then he wouldn’t go away. People thought I liked being his victim. I didn’t. People thought Bobby kept coming back because I loved him. I didn’t. People thought I was the village idiot.
I went home to Bobby when I was released from the hospital. I felt elated to still be alive. Of course, he promised to never hurt me again; he always promised that. I didn’t believe him, I had nowhere else to go. Four days home from the hospital he closed my arm in a door.

Bobby tortured me for over a year.

I have an answer now for the people that asked, “Why don’t you just leave?” I did. It took some time to escape alive -- but I did. My son and I took refuge in a safe house, a hide out, and stayed for weeks. When it was time to leave I invited another woman in hiding, another refugee from abuse, to stay at my house. She helped me through the scary days that followed. Bobby threw rocks through my windows and set fire to my shed.

Ten months after I escaped, Judge Warren cracked her gavel and pronounced him guilty of one count of domestic violence.

Years later, I am still wary of small dogs and small men. Mini-blinds are now just ordinary, although I avoid them.


Tuesday, September 2, 2014

So Why Can't I Own a Law Firm?

I know, I know, because I'm not an attorney and the rules say so, that's why. I know, but why?????????

I have a few reasons for my curiosity. First, an associate received the dreaded letter from the Florida Bar stating that her company may be engaging in the unauthorized practice of law. The apparent red flag: stated on her website is that she has an attorney on her team. Her site also states that they do not provide legal advice or representation; and that her company focuses on document preparation for family law matters and divorce mediation services. I'm not sure what the word "team" means, but the Florida Bar thinks it might lead consumers to believe that they could receive legal advice as part of her company's services. Perhaps. But why is that a problem? I mean an attorney offering legal advice doesn't sound sinister.

Then I wondered, how is this any different from Legal Zoom putting the law on my side in their national advertising campaign with Attorney Robert Shapiro of OJ Simpson fame as spokesperson? I have absolutely no argument with Legal Zoom, and believe they have done a great job in educating the public. However, isn't Shapiro's smiling face similarly misleading?

In Florida, as in most parts of the United States, nonlawyers are prohibited from owning law firms. The exception is Washington DC where its allowed, and has been since 1980.

Published on Mar 19, 2014
Mar. 19, 2014 (Mimesis Law) -- Mike McDevitt, CEO for Tandem Legal Group, is not a lawyer, but thanks to an obscure rule in Washington, D.C.'s code of ethics for lawyers he is able to have an ownership interest in the law firm he runs. But that doesn't mean he's advising clients on legal matters. "My level of knowledge on law is not that high, so I'm not going to get involved in legal decisions for our organization," he tells Lee Pacchia [in a you tube interview]. "My job as CEO is to help our organization run an efficient and effective firm."

Tandem Legal Group's business model is refreshing and reminiscent of an era when businesses sought out legal advice, before a crisis erupted. The business theory of Tandem is to help their clients grow their businesses - together - in tandem. Great concept.

The U.K. and Australia allow nonlawyers to own and operate legal firms, apparently without damage to consumers. An article by Attorney Robert Denney, "The Newest Big Issue: Non-Lawyer Ownership or Investment in Firms" (1/13) discusses the issue.

According to Denny, 23 years ago the U.K. passed the Courts and Legal Services Act of 1990 (CLSA) breaking the monopoly that attorneys had over legal services. This act allowed non-lawyers to enter the legal market by the creation of "Alternate Business Structures" and allowed lawyers and non-lawyers to work together to deliver legal services and also solicit outside investments.

After that, a major personal injury firm in Australia, filed a public stock offering. And, in 2007 the U.K., passed the Legal Services Act, succeeding the 1990 act. The motive behind these developments was to increase consumers’ access to legal services and to increase competition in the legal profession.

Since the 2007 UK law passed various types of business structures and ownerships of law firms have emerged; including publicly traded personal injury and, real property law firms. In March 2013, British regulators allowed an organization that runs grocery stores, and also offers banking and insurance services to provide legal advice on divorce and other family law matters to its seven million members.

Imagine, having your divorce documents prepared through Sam's Club!

One of the recurring arguments from the bar associations against allowing nonlawyers to own law firms, is that it would dilute the integrity of the legal profession. Lawyers are professionals, and having nonlawyers as law firm owners would sacrifice the quality of legal advice in favor of pure monetary gain. [Lions and tigers and bears - oh my.] And that nonlawyers making legal decisions would damage consumers. There is some truth to that statement; and its simple enough to solve by dividing duties to prevent that situation. Lawyers make legal decisions; business owners make business decisions.

I don't have to be a doctor to have an ownership interest in a medical clinic. Good, bad, or indifferent, the corporate practice of medicine is alive and well in the United States.

      Florida law does not prohibit the corporate practice of medicine, but does prohibit "fee-splitting" by health care professional. .. However, there is no prohibition on a health care provider's forming and operating his or her medical practice as a regular business corporation (usually designated by the abbreviation "Inc.") or as a regular limited liability company ("LLC"). Click Here to Read More.


Fee splitting is also prohibited between lawyers and nonlawyers.

1. The origin of fee splitting prohibitions in Florida are founded on certain core principles which are fundamental to the legal profession's proper function.

2. These principles include the protection of a lawyer's duty of loyalty to a client, the lawyer's duty of independence in making decisions which are in the best interest of the client and no other, including the lawyer; the lawyer's duty to hold client confidences inviolate; the lawyer's duty to act free of impermissible conflicts and the lawyer's duty of competence.

Rule 4-5.4 of the Rules Regulating The Florida Bar and ABA Model Rule 5.4 have long prohibited the sharing of fees generated by the rendition of legal services with non lawyers because of the lawyer's duty of independence and the lawyer's duty to exercise loyalty to the client over and above any duty to the lawyer or to the organization employing the lawyer. www.FloridaBar.org

In 2011, The Florida Bar News, published an article posing the following question:
"Should lawyers be allowed to split fees with private lawyer referral services or at least pay a flat 
fee per referred case?"

As it is now, lawyer referral services are only allowed to charge a subscription fee for attorneys to receive referrals, but may not charge a flat fee, or percentage, per referral. Many nonlawyers would happily refer to attorneys if they could. As it is, there is nothing to gain for a nonlawyer document preparer to refer a customer to an attorney. The attorney is not allowed to pay a referral fee, and many attorneys would prefer that nonlawyer document preparers didn't exist to begin with. Why, then, would a document preparer refer a paying client to an attorney? Answer is, for the good of the client. And that's fine, and fair enough.  

However, many document preparers have been unable to cultivate any sort of relationship with any attorney, as there is all too often an uneasy coexistence between lawyers and non. After all, it is difficult for a nonlawyer document preparer to see his way clear to refer to any attorney when it is often attorneys who complain to the Florida Bar about nonlawyers possibly engaging in the unauthorized practice of law. Some individual nonlawyer document preparers and some individual attorneys exchange referrals for no fee; but these arrangements are exceptions and not the norm. A more frequent scenario is that when a nonlawyer document preparer realizes that the consumer needs legal advice rather than document preparation, the consumer is simply turned away, with no referral to anyone or any resource. How does this help consumers? Answer is, it doesn't.   

In the previously mentioned article - "When is fee-splitting OK?", former Board of Governors member D. Culver “Skip” Smith , who raised the question during the Special Committee on Lawyer Referral Services, stated "it could be seen as hypocritical that Bar rules prohibit sharing or splitting fees with nonlawyers in all cases except one — with nonprofit lawyer referral services approved by the Bar. Essentially those are programs run by area voluntary bars, plus the statewide program run by the Bar. (If a lawyer takes a referral from one of these services, a percentage of the final fee, typically 10 or 15 percent, reverts to the service to help fund its operations. The services also collect a small up-front fee from the callers who accept a referral.)"

and, Smith continued:

“For-profit referral services, it seems to me, are not going to stay in business charging an annual subscription fee or an annual membership fee. They want their money per case,” Smith said. “I believe that a per case flat fee is not fee-sharing. . . . Lawyers expect to pay something per case for these referrals in this day and age. Obviously, you don’t pay a percentage like half of the fee, but a flat fee that’s not based on the size of the fee.”

However, "Bar Ethics Counsel Elizabeth Tarbert explained to the committee why the Bar disagrees.

“The reasons that we prohibit fee-sharing with nonlawyers generally are to stop a nonlawyer from having control over the lawyer’s independent professional judgment in representing clients and providing active counsel and good competent advice to their clients,” she said. “Generally, the control follows the money, and if the nonlawyer has the money, the nonlawyer is the one calling the shots.”

With the local bar-run programs, the Bar has direct control and can revoke a program if it violates Bar rules, Tarbert said, eliminating the risk the service will meddle in how a case is handled."

And there you have it.

Follow the money. The Florida Bar is concerned that the nonlawyer will call the shots. And, I completely agree that legal decisions should be left to the legal professional. Just as when someone who is not a doctor operates a medical facility, medical decisions must be left to the medical professional. However, having someone who is not an attorney make the business decisions may be the best thing that could ever happen to attorneys. In the best of all possible worlds, the day to day business activities - marketing, customer service - and long term business planning could be done by a business professional. Attorneys could focus on giving legal advice and litigation.

As it is, I have no doubt that business decisions that attorneys make on a daily basis affect their independent judgment in providing active counsel and good competent advice to their clients.